Citation Nr: 1338062 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-29 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to additional VA educational assistance benefits beyond August 28, 2010, under 38 U.S.C.A. Chapter 33 (the Post-9/11 GI Bill). ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from December 1990 to January 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the instant claim lies with the RO in Houston, Texas. In his substantive appeal, the Veteran asserts entitlement to additional benefits under 38 U.S.C.A. Chapter 31. However, this claim has not yet been adjudicated by the RO and is not before the Board for appellate consideration. As such, this issue is REFERRED to the RO for its consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. At the time the Veteran submitted a VA Form 22-1990, Application for VA Education Benefits, and he had received 46 months and 18 days of benefits under the Chapter 31 Vocational Rehabilitation & Education (VR&E) program. 2. As of August 28, 2010, the Veteran received a total of 1 month and 12 days of educational benefits under the Post-9/11 GI bill. 3. The Veteran has received a total of 48 months of combined educational benefits; he is not entitled to additional benefits under the provisions of Chapter 33 (the Post-9/11 GI Bill). CONCLUSION OF LAW The claim for additional educational assistance benefits under 38 U.S.C.A. Chapter 33 must be denied. 38 U.S.C.A. § 3685 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.4020(a), 21.9500-21.9770 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Although the appellant has not received notification of VA's duties to notify and assist, the Court has held that Veterans Claims Assistance Act (VCAA) notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure for claims was contained in 38 C.F.R. § 21.1031 (2013) and not the VCAA. See 38 C.F.R. § 21.9510 (specifically applying the provisions of subpart B and 38 C.F.R. § 21.1031 to claims for educational assistance under Chapter 33). In addition, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). Analysis The provisions of Chapter 33, Title 38, of the United States Code were established by the Post-9/11 Veterans Educational Assistance Act of 2008. See Title V of the Supplemental Appropriations Act of 2008, Pub. L. 110-252. The Appropriations Act amended Part III of Title 38, United States Code to include a new Chapter 33. The Post 9/11 Veterans Educational Assistance Act of 2008 represented a new program of education benefits designed for veterans who served on active duty after September 11, 2001. VA law provides a limit on training under two or more programs. The aggregate period for which any person may receive assistance under two or more programs, including, in pertinent part, Chapters 31 and 33, may not exceed 48 months. 38 U.S.C.A. § 3695(a) (West 2002 & Supp. 2013); 38 C.F.R. § 21.4020(a) (2013). A review of the record shows that, prior to receiving educational assistance under Chapter 33, the Veteran received a total of 46 months and 18 days of Chapter 31 benefits under the VR&E program. The Veteran received 1 month and 2 days of educational benefits under Chapter 33 for the period February 22, 2010, to May 15, 2010. In the January 2011 decision on appeal, he was awarded 10 days of entitlement for the period August 16, 2010, to August 28, 2010. Having received a total of 48 months of assistance, he was then informed that he had no remaining entitlement under Chapter 33. The appellant contends that he is entitled to additional educational assistance beyond August 28, 2010, under the Post-9/11 GI Bill as he has been unable to obtain employment in the field in which he has received previous VR&E training under Chapter 31. He asserts that, because the field for which he trained requires an entry level of at least a Master's degree, and he has been unable to secure employment despite "intensive efforts," additional training is warranted. See, e.g., January 2012 notice of disagreement. While an individual may be entitled to benefits under various education programs, a person may not receive more than 48 months of educational assistance under two or more educational programs. 38 U.S.C.A. § 3695; 38 C.F.R. § 21.4020(a). The United States Supreme Court has held that "payments of money from the Federal Treasury are limited to those authorized by statute." See OPM v. Richmond, 496 U.S. 414, 416 (1990); McTighe v. Brown, 7 Vet. App. 29 (1994) (holding that Richmond meant VA could not pay benefits unless authorized by Congress). There is no basis in law or fact whereby the Veteran may be granted more than 48 months of combined education benefits. The law in this case, therefore, and not the evidence, is dispositive of the appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, entitlement to additional educational assistance under 38 U.S.C.A. Chapter 33, must be denied. As a final note, the Board acknowledges that 38 U.S.C.A. § 3695(b) permits the provision of additional benefits under Chapter 31 if the Secretary determines that such benefits are necessary to accomplish the purposes of the rehabilitation program. However, such benefits are outside the scope of the instant appeal, which is limited to additional benefits under Chapter 33. Entitlement to additional VR&E benefits under Chapter 31 has been referred above to the RO for consideration. ORDER Entitlement to additional educational assistance under 38 U.S.C.A. Chapter 33 is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs